In a recent case, Brown v. Akima, LLC, the federal court for the Eastern District of Virginia found for an employer when an employee filed claims of race discrimination, retaliation, and hostile work environment. While this case was decided on a particular set of facts, the ruling may offer guidance to other employers.
Plaintiff Kenya Brown was employed by Akima, LLC beginning in November 2014. Brown is African American and was employed in the IT Department under the supervision of Navid Falconer. In May 2017, Brown requested to attend an annual conference, which she had previously attended when employed by another department. However, her request was denied, although other employees in different positions were permitted to attend, one of whom was African American. Plaintiff complained to her former supervisor about not being able to attend the conference. She indicated to him that she felt she was being treated differently than other employees by not being permitted to attend the conference, although she did not specifically mention she felt she was being treated differently because of her race. Brown also felt she was treated differently based on the responsiveness of her supervisor’s emails, job responsibilities, lack of a pay raise, and unfavorable comments made by coworkers.
In the summer of 2017, Akima sought to consolidate positions for cost-savings. Falconer discovered that Brown’s position didn’t have enough work to warrant a full-time position and decided to make the position part-time. Brown was notified on October 6, 2017 of the change to part-time, but Brown chose not to take the position because it wasn’t full time and didn’t offer benefits. Brown’s employee separation agreement with Akima noted that the parties agreed to “mutually sever the employment relationship.” Brown’s duties were initially assumed by other employees, one of whom was African American, but Akima later contracted with another African American individual to perform Brown’s tasks.
At no time during her employment did Brown file a formal internal complaint with Akima regarding race discrimination. On February 20, 2018, Brown filed suit against Akima alleging 5 counts, including race discrimination, retaliation, and hostile work environment. Akima filed for summary judgment.
For a plaintiff to succeed on a claim of racial discrimination, she must first make a prima facie case of discrimination. If the plaintiff is able to make a prima facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory explanation for the adverse employment action. Then, the burden shifts back to the plaintiff to establish that the employer’s offered explanation is merely pretextual. Here, the court found that Brown could not make a prima facie case of discrimination, because she couldn’t establish that she suffered an adverse employment action or that she was replaced by someone outside her protected class.
Brown argued that her removal from full-time employment qualified as an adverse employment action. In the Fourth Circuit, an adverse employment action is a “discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff’s employment.” However, “simply because an employee finds a decision by her employer unappealing does not make that decision a qualifying adverse employment action.” Here, the court considered the fact that Akima never terminated Brown, since she left her employment voluntarily. Akima offered Brown a part-time position after dissolving her previous position, which Brown was free to take, but she declined. Additionally, the employee separation agreement signed stated that the parties’ decision to end the employment relationship was mutual. The court concluded that Brown couldn’t establish she was terminated based on her race when she voluntarily agreed to end her employment. Brown also argued that she was discriminated against based on the responsiveness of her supervisor’s emails, job responsibilities, and being denied permission to attend the conference, but the court determined these things did not equate to an adverse employment action, because they did not affect the terms, conditions, or benefits of her employment. The court also determined that Brown couldn’t establish the fourth element, since her duties were assumed by African American individuals.
Brown next argued she was discriminated against by not receiving a pay rise, since other similarly situated employees received pay raises, and being denied permission to attend the conference when others were permitted to attend. However, the court pointed out that these other employees were employed in different positions or with different supervisors, and did not constitute “similarly situated.” Since Brown was not able to show that she was treated differently than “similarly situated” employees, her argument failed. Even if Brown had established a prima facie case, her case would still be unsuccessful, because Akima offered a legitimate, nondiscriminatory business reason for its decision. The court found that a company’s financial decisions are legally sufficient justifications for terminating an employee. Brown was not able to establish that the reason offered by Akima was pretextual, and, thus, her claim failed.
Brown’s claim of retaliation was based on the argument that Akima terminated Brown because she made complaints and participated in a protected activity when speaking to her former supervisor about how she felt she was being treated differently. The court found that while “protected activity” encompasses informal grievance procedures and informal protests voicing one’s opinions to bring attention to discriminatory activities, Brown never indicated any concern that her alleged treatment was because of her race. Thus, Brown did not engage in a protected activity and the court granted summary judgment in favor of Akima.
Brown’s claim of hostile work environment was based on unfavorable comments several of her colleagues made to her. However, none of the comments made were based on Brown’s race and were not severe or pervasive enough to alter the terms and conditions of her employment. Additionally, two of the individuals who allegedly made the comments were also African American. Since Brown was not able to establish that the comments were based on her race or that she was being discriminated on based on her race, her claim failed.
Absolute hard and fast rules can’t be taken from this case, since each case will be decided based on the specific circumstances surrounding the issue, but the case does offer some helpful guidance for factually similar scenarios. Based on the court’s ruling, an employer’s decision to consolidate and dissolve positions, based on financial considerations, will likely be viewed as a legitimate, nondiscriminatory reason for terminating an employee. Additionally, when such a position is dissolved or hours are reduced and an employee voluntarily resigns from employment, that employee likely did not suffer an adverse employment action. Best practice for employers may include utilizing separation agreements in such circumstances, making clear that the parties mutually decided to end the employment relationship.
Additionally, based on the court’s ruling, while informal grievances can constitute “protected activity,” it seems clear that the grievance must indicate concern that discrimination is based on membership in a protected class, such as because of race. Merely complaining about being treated differently than other employees, in general, will likely not suffice to constitute protected activity in a later retaliation proceeding. Similarly, unfavorable comments made to an employee that are not based on membership in a protected class, such as race, are likely insufficient to establish a hostile work environment claim.
If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 202-360-4230. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.